How Do I Know If I'm Violating a Trademark?

By Lori Lapidario

A trademark identifies and distinguishes the origin of a product or service in the marketplace. It uses either a word, phrase, design or any combination of these. It helps people to differentiate between products and services. Businesses have exclusive rights to use their marks in commerce, so long as they do not violate another party's mark.

A trademark identifies and distinguishes the origin of a product or service in the marketplace. It uses either a word, phrase, design or any combination of these. It helps people to differentiate between products and services. Businesses have exclusive rights to use their marks in commerce, so long as they do not violate another party's mark.

Trademark Violation

You are responsible for ensuring that the mark you choose does not violate someone's trademark. It is your responsibility to conduct a trademark search to ensure that the mark being considered is not in use. There is no easy way to do this, and even the most extensive search may not be 100 percent guaranteed. Ignorance of trademark rights and rules is not a defense against infringement claims or lawsuits.

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Trademark Search

An inexpensive way to conduct a search is through the Internet or by searching the United States Patent and Trademark Office's Trademark Electronic Search System. Another way to conduct the search is by hiring a trademark attorney. The attorney can either do an in-house search or use the services of a trademark searching company. He can then review the results of the search and provide the client with an opinion regarding use of the mark. This approach, however, could be costly.

Trademark Registration

After you have decided on the mark to use, you can take advantage of your common law rights by using your mark in commerce, so long as your use does not violate another party's trademark rights. However, these rights are limited to the geographic area where you use the mark or can demonstrate planned use for the mark. You may expand upon your common law trademark rights by registering the mark in your state or federally through the U.S. Patent and Trademark Office. Registration of the mark provides ownership notice to the public and provides additional benefits and protections should you need to file an infringement lawsuit in the future.

Trademark Policing

It is your responsibility as trademark owner to police the use of your mark. You can conduct regular Internet searches to check if your mark is being used by someone else; however, such searches may not find every potential violation. You can also use the services of a trademark search company and pay for "watch" services to receive regular reports of pending trademark applications, domain name watches and common law uses of marks that may be similar to yours.

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How Trademarks Work

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Expiration of Trademark Registration & Abandonment

A trademark is a combination of words or symbols that identifies and distinguishes a product or service of an individual or company. Commercial use automatically creates common-law trademark rights that last as long as the mark remains in commercial use. You can also register and maintain a trademark with your state or with the U.S. Patent and Trademark Office. Federal registration and maintenance is more expensive, but it provides a public record of the trademark claim and the ability to sue in federal court to protect your rights. You must periodically renew and monitor your claim to prevent expiration or abandonment.

Trademark Identification

Trademark identification can be a difficult process, as there are many different sources of trademarks. In addition to the United States Patent and Trademark Office, or PTO, trademarks may be issued by individual state governments as well as governments from foreign jurisdictions. In order to adequately protect your mark, you must ensure that it is correctly identified and that it does not infringe on the mark of another.

How to Use TESS for Trademark

A trademark is a unique symbol, phrase or word used to distinguish one brand of goods or services from another. Technically, a trademark is protected as soon as it is used to conduct business, although registering the mark with the United States Patent and Trademark Office provides additional advantages. In any case, a search of the agency’s Trademark Electronic Search System, or TESS, can help to ensure a duplicate mark does not already exist.

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